Supreme Court Hears Argument Challenging 21st Century Yellow-Dog Contracts

by Ruben J. Garcia, Associate Dean for Faculty Development and Research, William S. Boyd School of Law, University of Nevada Las Vegas. Garcia is a member of the ACS Board of Directors and Board of Academic Advisors.

In 1932 and 1935, Congress declared the public policy of the United States in labor matters as follows:

“[I]t is necessary that [the individual unorganized worker] have full freedom of association, self-organization…in the designation of such representatives or in self-organization, or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”.

In Section 3 of the Norris LaGuardia Act, Congress declared that contracts which conflict with the public policy declared above to be “unenforceable in any court of the United States.” Congress has not repealed or retracted these declarations.

Now over 80 years later, the truth of these propositions is being tested in the Supreme Court in Epic Systems v. Lewis, consolidated with Ernst & Young v. Morris and NLRB v. Murphy Oil. The case, which was argued on the first Monday in October Term 2017, tests whether the congressionally declared purposes in Norris La-Guardia and the National Labor Relations Act of 1935 (NLRA) to better equalize bargaining power between employers and employees will still be honored in the 21st Century. After decades of Supreme Court decisions that have favored mandatory arbitration over state laws, the Supreme Court has not yet confronted the clash between the federal labor laws of the 1930s and the Federal Arbitration Act of 1925 (FAA).

In the Official Transcript of the oral argument released yesterday, Justice Stephen Breyer put the tension directly before attorney Paul Clement. Clement argued on behalf of the companies in all three consolidated cases:

Justice Breyer: “What we have here is a statute, two of them, Norris-La Guardia, the NLRA…The statute protects the workers when two workers join together to go into a judicial or administrative forum for the purpose of improving working conditions and the employers here all said, we will employ you only if you promise not to do that. Okay? I haven’t seen a way that you can, in fact win the case, which you certainly want do, without undermining and changing radically what has gone back to the New Deal, that is, the interpretation of Norris-LaGuardia and the NLRA.”

Justice Ruth Bader Ginsburg called these group action waivers “yellow dog” agreements, after the early 20th Century contracts which conditioned employment on not organizing or joining a union. The Supreme Court approved these contracts on “freedom of contract” grounds in Coppage v. Kansas in 1915, but Norris La-Guardia specifically overruled that decision in 1932.

Justice Ginsburg: “This has all the same—the essential features of the “yellow dog” contract.  That is, there is no true liberty of contract on the part of the employee, and that’s what Norris-LaGuardia wanted to exclude.”

In all three consolidated cases, the employer sought to prevent the employees from proceeding in a collective action under federal law for back wages due by moving to compel performance of the arbitration agreement, which required workers to proceed individually. Justice Elena Kagan asked why the employer’s attempted enforcement of the group action waivers was not directly covered but the Norris LaGuardia Act.

Justice Kagan:  “What about section 102 of Section 103 of the Norris-LaGuardia Act. . . . Any undertaking or promise in conflict with—-essentially the same language as Section 7 — shall not be enforceable in any court.  So what about that.”

Clement answered that the prohibitions of Norris-LaGuardia “assume[d] the conclusion,” because “you didn’t have a freestanding right to proceed with class arbitration in an arbitral forum.  You had a right to go to whatever forum and abide by those rules, and one of the rules in the arbitral forum is no class action.”

When Principal Deputy Solicitor General Jeffrey Wall was at the lectern, Justice Samuel Alito wanted an answer to the Norris-LaGuardia questions, asking: “Is [Norris-LaGuardia] not before us, is it so closely tied to the NLRA issue that it is appropriate for us to decide it?”  Wall answered that the issue was not before the Court, and even it was, Wall said: “I don’t think it adds anything.”

Then, Wall was asked about the potential conflict between his argument and another federal statute, Title VII of the Civil Rights Act of 1964.  Justice Kagan asked, “I do think both you and Mr. Clement agree that, if you had a discriminatory arbitration agreement, let’s say an arbitration agreement that said that the employer will pay for the arbitration costs of men, but not women, that would not be enforceable, why not?”

Wall responded, “If that case came to the Court, I think we would have no trouble concluding that the ADA and Title VII supply a clear congressional command, and . . . .”

Justice Kagan: “Okay. So, if that’s the case and you are saying there can be a conflict between statutes and Title VII would supply a clear congressional command, even though Title VII says absolutely nothing about arbitration.”

Wall responded:   “Well, again, I don’t think it is a magic words test—and we agree with Petitioners on that. You a have a clear congressional command absent that.  You just don’t have it in Section 7.”

Wall continued and concluded the United States’s argument, at odds with its Executive Branch agency the National Labor Relations Board which enforces the NLRA: “Justice Kagan, it is not a fundamental attribute of arbitration to discriminate on the basis of race, age, or gender.  It is a fundamental attribute of arbitration, and this Court said it three times, to pick the parties with whom you arbitrate.”

He continued: “And our simple point is this case is at the heartland of the FAA. It is at best, at the periphery of the NLRA, on the margins of its ambiguity, and you simply can’t get there under the Court’s cases.”

With that, Wall and the Trump Administration presented the Court with a stark choice—side with the employers who have the bargaining power to “pick” the parties with whom they arbitrate and further relegate workers to the “margins of the [the NLRA’s] ambiguity,” or effectuate Congress’s purpose in the Norris-LaGuardia and National Labor Relations Acts to protect employees’ ability to engage in “concerted activity for their own mutual aid and protection,” in order to improve the bargaining power of all workers.  Although Justice Neil Gorsuch did not ask questions during the argument, his views might be dispositive when the case is decided later this Supreme Court Term.

*Ruben J. Garcia is author of the book Marginal Workers: How Legal Fault Lines Divide Workers and Leave Them Without Protection (NYU Press)

Did President Trump Declare War on North Korea?

by Ashley Deeks, Professor of Law and Senior Fellow, Center for National Security Law, at the University of Virginia School of Law

Last week, North Korea’s Foreign Minister claimed that President Trump had “declared a war” on his country.  He apparently reached that conclusion based on President Trump’s tweet stating that North Korea “won’t be around much longer” if the Foreign Minister’s U.N. speech accurately represented the thoughts of Kim Jong Un.  In response to this alleged U.S. declaration of war, the Foreign Minister threatened that North Korea would shoot down U.S. aircraft flying off the North Korean coast, even if the aircraft were in international airspace.

Is North Korea correct that President Trump declared war?  And if so, what follows as a legal matter?

The short answer is that President Trump has not declared (and constitutionally cannot declare) war with North Korea.  First, as a matter of international law and international relations, states no longer “declare war” against each other.  Today’s international system is regulated by the U.N. Charter, which provides that states must refrain in their international relations from the threat or use of force.  The only lawful exceptions to this prohibition are actions taken in self-defense or pursuant to authorization by the Security Council.  States acting pursuant to one of these two exceptions would have little reason (legally or politically) to declare war, and there are few examples in recent history of states declaring war when acting in self-defense.  As a result, declarations of war may now carry a patina of aggression – something no state wants to be seen as undertaking.

Second, as a matter of U.S. domestic law, the Constitution clearly provides that Congress, not the Executive, will “declare war.”  Congress last formally declared war against other states in 1942 (against Bulgaria, Hungary, and Rumania).  Today, Congress authorizes the president to engage in armed conflict through the use of Authorizations for the Use of Military Force.  For instance, Congress authorized the president to use force in 2001 against al Qaeda and the Taliban, and in 2002 it authorized him to invade Iraq.  (A full list of declarations of war and authorizations for the use of military force can be found in this Congressional Research Service report.)

Third, as a factual matter, President Trump’s tweet is hardly unambiguous.  It seems quite likely that North Korea’s response to it is driven entirely by politics, not by an actual belief that Trump has, as a legal matter, initiated a de jure state of war between the two countries.

The fact that the U.S. system assigns Congress the formal war powers does raise an interesting question, however.  International law generally treats states as black boxes, which means that one state is not usually expected to know how other states’ internal decision-making processes work.  Thus, it is conceivable that a U.S. president could issue a statement that clearly appears to be a declaration of war, and that another state could fairly rely on that statement to construe itself to be in a formal state of war with the United States, in the belief that U.S. presidents may declare war.  That is not the factual situation in play here, however.

Putting together the ideas that (1) states rarely issue declarations of war today and (2) in the U.S. system, Congress declares war, President Trump’s tweet should not be (and cannot reasonably be) construed as constituting a declaration of war.  What really matters here are actions, not words.  The key question is what, if anything, the president orders the U.S. military to do moving forward.  Although Congress is constitutionally assigned the “declare war” power, this does not mean that the Executive cannot undertake military action without prior congressional authorization.  There are dozens of examples of situations in which the President has deployed military forces abroad without congressional blessing – including the Korean War, the attempted rescue of Americans in the U.S. Embassy in Tehran, and airstrikes in Libya in 2001, to name just a few.  It remains to be seen, of course, what roles the President and Congress choose to play in navigating these tense relations with North Korea.  But we are not at war yet.

Diversity of One

by Victoria Bassetti

*Victoria Bassetti is leading ACS' analysis of US Attorneys.

On September 21, when Louis V. Franklin, Sr., raised his hand to take the oath as U.S. Attorney for the Middle District of Alabama, he could not have known that Donald J. Trump, the man who had appointed him, would launch an attack the next day on black football players who take the knee.

What Franklin surely knew, however, was that he is the only African-American President Trump has selected thus far to be a U.S. Attorney or indeed to hold any senior position at the Department of Justice.

President Trump has nominated 46 people to be U.S. Attorneys to date. Of them, three are women; two are Asian American; and one is Native American. And one, Franklin, is the only African American.

Law enforcement officials and prosecutors are concerned about the lack of diversity in the Trump class of US Attorneys.

“I can probably tell you that the vast majority of people they are going to be serving or prosecuting are going to be black or brown people. So, it’s troubling,” said William Jorden, president of the National Black Prosecutors Association. “How can you say you represent the people. You can’t represent the people if you don’t look like the people.”

“This coincides with the troubling regularity of divisive rhetoric and with the violence [of Charlottesville]. It all has to go in one large melting pot of concern,” said Jorden.

“It’s important to have confidence in the system, especially at this point in time. A diverse corps enhances the credibility of the system,” said Ron Weich, dean of the University of Baltimore School of Law. “There is a crisis of faith in the criminal justice system, and we need law enforcement officials who represent the full range of community members,” he said.

Overall, two percent of Trump’s nominees are black. Seventeen percent of President Barrack Obama’s nominees for the top prosecutor posts were African American. There are 93 US Attorneys in the United States, serving in each of the judicial districts.

The 59-year-old Franklin has spent almost his entire legal career at the U.S. Attorney’s office for the Middle District of Alabama. He started with the office as an Assistant U.S. Attorney in 1990 and eventually rose to be its Criminal Chief. He was briefly in private practice from 1996 to 1998. The Senate confirmed him as U.S. Attorney on September 14 by voice vote.

The Middle District of Alabama covers the southeastern corner of the state and includes the state’s capital, Montgomery.

In 2006, as head of the office’s criminal division, Franklin led the headline making prosecution of Alabama’s then-Governor Don Siegelman on corruption charges. Siegelman, the last Democrat to hold statewide office in Alabama, was convicted on bribery and obstruction of justice charges. The jury found that Siegelman had sold a seat on a state regulatory board in exchange for a $500,000 donation to a campaign he was associated with.

The Siegelman case was quickly embroiled in controversy, with charges that the prosecution was politically motivated, that it had been strongly influenced or even driven by then White House Senior Advisor Karl Rove, and that it had little legal justification. More than 50 state attorneys general from both parties pushed for a congressional investigation of the matter shortly after Siegelman’s conviction. "I haven't seen a case with this many red flags on it that pointed towards a real injustice being done," Grant Woods, the former Republican attorney general of Arizona told a CBS reporter at the time. The House Judiciary Committee opened an investigation into the prosecution.

Franklin himself came under fire from observers for offering multiple and conflicting explanations for the decision to investigate and then prosecute Siegelman. An investigation by the Department of Justice’s Office of Professional Responsibility concluded that the investigation was not politically motivated.

The 93 U.S. Attorneys President Trump appoints will be at the forefront of his Administration’s efforts to set law enforcement priorities. 

Department of Justice watchers worried that the lack of African Americans in prominent positions would also affect the process by which future policy decision would be made. Historically, the Attorney General has an Advisory Committee composed of U.S. Attorneys that provide him or her feedback. In the early days of the Obama Administration, when the Department was headed by Eric Holder, that committee was chaired by Loretta Lynch, then the U.S. Attorney for the Eastern District of New York and an African American. There was always “an array of views and perspectives in that room,” said Weich who was the Assistant Attorney General for Legislative Affairs under Holder.

“I was in many meetings with U.S. Attorneys at DOJ, and I was always struck by the diversity of viewpoints and experience in the room. That was so valuable,” Weich said. “African American U.S. Attorneys were strong advocates for the Department’s positions on sentencing reform and hate crime legislation.”

The lack of African Americans “is concerning because not only is the U.S. Attorney the lead law enforcement offices for the district” but because of their role in advising Attorney General said Barbara McQuade, who was the U.S. Attorney for the Eastern District of Michigan for seven years in the Obama Administration. Under Attorney General Holder, the U.S. Attorneys met as a group eight times a year and in addition served on several DOJ working groups including one on racial diversity. “It’s useful to have diverse perspectives at the table for the administration of justice,” McQuade said.

In the eight months since Jeff Sessions became Attorney General, he has reversed course on many Obama-era prosecutorial objectives. In May, he directed local DOJ offices, led by the U.S. Attorneys, to bring the most serious charges and seek the most severe penalties possible in criminal cases with an emphasis on mandatory minimum sentences. The directive reversed an Obama-era initiative that urged prosecutors to avoid bringing charges that could trigger mandatory minimum sentences against non-violent drug offenders.

Sessions also announced a renewed use of civil asset forfeiture at the Department this summer. “We will continue to encourage civil-asset forfeiture whenever appropriate in order to hit organized crime in the wallet,” he said. Civil asset forfeiture is a technique used by law enforcement to seize property involved in criminal activity. In many cases, the property can be taken before a criminal conviction has been secured. Sessions revived a program put to rest by Attorney General Eric Holder that allowed state and local governments to seize assets under the auspices of federal law. Federal agencies later shared the bounty back with them. That program was viewed as enabling abuse of civil asset forfeiture laws.

A Washington Post analysis of the program found that more than $2.5 billion in assets had been taken under the program in a thirteen-year period from late 2001 to 2014. It found that “local and state police routinely pulled over drivers for minor traffic infractions, pressed them to agree to warrantless searches and seized large amounts of cash without evidence of wrongdoing.”

The absence of African Americans at the Department could “retard the growth and development of what National Black Prosecutors Association have been pushing for – more inclusion of black and brown people in the prosecutorial ranks,” said Jorden.

The reason for the lack of African-American nominees is unclear. Traditionally, responsibility for selecting U.S. Attorneys is diffuse. Nominees are selected on a state-by-state basis with Senators, especially those of the President’s party, playing a dominant role in suggesting the nominees to the White House and Department of Justice. “I’m not sure if it’s fair to lay [responsibility for the lack of diversity] at the President and Session’s door. No one’s looking at the whole field,” said McQuade. She noted that there is a tendency for Senators to pick people they know. “There is an old boy’s network. If that’s what’s going on, instead of a merit selection process, that could account for the difference,” between the diversity of Obama and Trump’s picks.

One reason for the lack of African-American appointees could be because African Americans are reluctant to work for an Administration that is seen as “hustling backwards,” Jorden said. “Some people may not want to serve.” He also added that qualified African-American candidates might be overlooked because they are not viewed as law enforcement leaders. “Either way, I know it’s troubling.”

Jorden said, however that there were many qualified African-American prosecutors who would be interested in being U.S. Attorneys. “All they have to do is reach out and ask.”

One Senate staffer who worked on the nominations process at the beginning of the Obama Administration, who asked not to be named, said that he recalled clear input from the White House pushing Senators to actively seek minority and women candidates for the post.

Overall, African-Americans are underrepresented in prosecutors’ offices. A 2014 survey of 2,400 elected prosecutors nationwide found that 95% of them were white and 79% were men.

The Attempt to Make the Muslim Ban Permanent

by Ryan J. Suto, J.D., Government Relations Manager, Arab American Institute

On September 24, the Trump White House released a new Presidential Proclamation effective October 18, which essentially makes permanent the temporary Muslim/refugee Ban the president signed earlier this year. The Proclamation, like Trump’s previous Muslim Ban actions, relies on the fundamental assumption that foreigners, and specifically Muslims and Arabs, pose a heightened threat. Arguing “...foreign nationals who may commit, aid, or support acts of terrorism, or otherwise pose a safety threat…” the Administration holds tightly to creating xenophobic fears, despite no existing evidence to show that foreign nationals commit crimes at greater rates than citizens.

Whereas the temporary travel ban, EO 13780, included Iran, Libya, Somalia, Sudan, Syria and Yemen, the Sept. 24 proclamation removed Sudan and added Chad, North Korea, and Venezuela. It also added nuance by providing a rationale to the Administration’s additions to the banned countries list, something we hadn’t seen with previous iterations.

While flawed at best, the Administration will undoubtedly point to their nuanced process, the various exceptions to the travel restrictions, the allowance for case-by-case waivers, and the addition of non-Muslim majority countries as reasons why the new ban is rational, objective, and constitutional. However, each of these defenses are lacking.

First, the establishment of the process by which the list of countries was created is important for distancing the Administration’s policy from their campaign conclusion that Muslims must be banned from entering the US. This Proclamation argues national security is a compelling state interest and that a travel ban is necessary because technological deficiencies prohibit the US from ensuring the identity of travelers which threatens national security. However, nowhere in the Proclamation does the Administration show that the claimed technological deficiencies, even if they do exist, actually lead to national security threats. At no point does the Proclamation note an instance or statistic to show that the lack of such technologies lead to increased terrorism threats.

Next, the Administration will point to the various exceptions to the travel restrictions and the allowance for case-by-case waivers to show the ban is not a blanket policy, but is narrowly-tailored to target individuals who pose heightened risks. Such provisions are insufficient to protect innocent foreign nationals because the Administration is nonetheless creating a presumption of danger: any individuals from these countries are presumed terrorists unless shown otherwise. Importantly, this presumption existed in the original Muslim Ban while specifically excluding non-Muslims. Further, the exceptions and case-by-case waivers are the same as they were under the temporary Muslim Ban, which nonetheless saw CBP agents harass and detain those who clearly fell under those exceptions, including US citizens who happen to be Arab or Muslim. The Administration’s thinly-veiled attempt to put a neutral face on a discriminatory policy nonetheless had the discriminatory impact it desired.

Last, Trump will claim that the addition of Venezuela and North Korea prove that the policy does not target Muslims. These additions are cosmetic and designed to hide the ban’s original intent. In North Korea travel to the US is already illegal, and most North Koreans seeking refuge in the US do so on South Korean passports. As for Venezuela, the ban involves a limited set of government officials and their families. This means that Muslim travelers remain the focus of the policy and the group most impacted.

Importantly, under the Proclamation there is no stated venue for individuals to challenge their treatment, and the Administration can, at will, expand the ban to broader classes of individuals or more countries. Allowing the Trump Administration to ban travel from these eight countries under this Proclamation opens the door for the ability to ban entire ethnic or religious groups without individual redress.

Regardless of how the Court handles the existing dispute over the first Muslim Ban, the permanent version via proclamation explicitly aims to limit the presence of the Arab and Muslim populations in the US through targeted immigration control. Such policies and intentions are evocative of the shameful Chinese Exclusion Act of 1882, and subsequent discriminatory US immigration policies, which banned the immigration of Chinese laborers to the US because they “endanger[ ] the good order of certain localities”. Contemporary US Senator George Frisbie Hoar of Massachusetts called the Chinese Exclusion Act “nothing less than the legalization of racial discrimination.” He was correct then, and the same is correctly said of the most recent  Muslim Ban Proclamation. Congress must now act again to end these bigoted, xenophobic policies emanating from the White House. Our country deserves nothing less.

Loyalty

by William Yeomans, Lecturer in Law, Columbia Law School

*William Yeomans served 24 years in the Civil Rights Division of the Department of Justice. He is currently the Ronald Goldfarb Fellow at the Alliance for Justice and Lecturer in Law at Columbia Law School.

Interior Secretary Ryan Zinke last week stated in a speech to oil industry executives that among Interior Department employees he “got 30 percent of the crew that’s not loyal to the flag.” He elaborated that they were not loyal to President Trump or to him. Zinke’s comments convey an attitude toward government service that is grounded in ignorance of the role of career government servants.

First, Zinke, as did Trump in dealing with former FBI Director James Comey, equated “loyalty” to the president with loyalty to “the flag,” presumably meaning the country. He suggested that patriotism in federal employment requires loyalty to the president. In reality, of course, every federal employee takes an oath to uphold the Constitution and does not swear fealty to the occupant of the Oval Office or his appointees. Federal employees serve their country by defending the Constitution and enforcing duly enacted law.

Zinke’s comment reflects a commonly held misunderstanding of career government service and why it is important in our constitutional scheme. Historically, government service was corrupted by non-meritocratic favoritism and political cronyism in hiring and promotion. Indeed, federal jobs too often were distributed as part of a grand spoils system. Our current civil service structure is an attempt to bolster the integrity and quality of employment decisions by basing them on a structured evaluation of the ability of a candidate to do the job.

Governments have learned repeatedly that creation of a merit-based, non-political bureaucracy is fundamental to building and preserving the legitimacy of government. Government functions best when staffed by a core of permanent and expert professionals. The challenge has long been how to prevent an entrenched bureaucratic class from becoming too powerful and how to ensure democratic responsiveness. The federal government’s response has been the creation of a complex set of relationships between political and career appointees and between the executive and legislative branches of government.

In our system, career government employees are supposed to be hired without inquiry into their political affiliation and they serve through both Democratic and Republican administrations. They contribute 1) substantive expertise based on years of immersion in a subject, 2) experience that can help shape effective policies and save incoming appointees both embarrassment and the need to reinvent the wheel, 3) an understanding of institutional culture and norms that helps political appointees get things done, 4) knowledge of and relationships with relevant players in Congress, NGO’s and others with an interest in the work of the agency, and 5) continuity through transitions in the White House. They owe allegiance to the Constitution and to the missions of their agencies, as defined by Congress and previous executive experience.

The average service of a political appointee is less than two years. They are selected because of a combination of their political connections and ability to do their jobs. Many bring 1) strong resumes, 2) political connections within their agencies and with Congress, 3) fresh perspectives, 4) energy, and 5) a desire to pursue the president’s agenda. They, too, swear to defend the Constitution, but they also understand that their jobs depend on pleasing the president.

Political appointees appropriately have the authority to make final decisions. Those decisions, however, are made best when they follow a process that incorporates the experience and expertise of career employees. As a practical matter, there simply are not enough political employees to handle the duties of government. More importantly, however, good decision-making rests on a foundation of facts, expertise, and experience to which career employees contribute enormously. While political and career employees may disagree, both are served best by an inclusive process that allows for reasoned discussion. 

Too often, political leaders, like Zinke, assume their positions burdened with deep distrust of career employees. They view them as an enemy that must be subdued or circumvented if the president’s agenda is to be served. Rather than engage and attempt to lead through an inclusive process, they shortsightedly seek to rule by fiat. Often they do so in ways that are ill-informed and, as a result, inconsistent with the established mission of the agency and longstanding interpretations of statutes and the Constitution. Principled career employees, who are bound by their oaths to uphold the Constitution, have a duty to push back. Ideally for all, they should have this opportunity before a final decision is made.

Weak political leaders who cannot tolerate disagreement have been tempted to reject merit-based hiring in favor of hiring people who share their political views. Such efforts to politicize the bureaucracy are unlawful and counterproductive, as George W. Bush’s Department of Justice learned. It undermined enforcement of civil rights law by filling the ranks of career attorneys with attorneys chosen for their right-wing politics and punishing successful attorneys perceived as too liberal. Its unlawful conduct destroyed morale within the Civil Rights Division, damaged its credibility with courts and advocates, and inflicted substantial damage on the Department of Justice.

We need a government that acts on the basis of facts, expertise, and experience. Shutting out the career bureaucracy from the process or distorting hiring practices to turn the bureaucracy into a reflection of the prevailing politics of the day will cripple government’s effectiveness. It will also pose a threat to our democratic institutions. A principled, informed bureaucracy that is loyal to the Constitution is an essential safeguard against a lawless president.

The Dilemma of the Black Athlete as Activist

by Gregg Ivers, Professor of Government, American University

In early September 1957, Central High School in Little Rock became the focus of world-wide attention when Arkansas Governor Orval Faubus decided to deploy the National Guard to prevent the nine African American students who had applied and been chosen to integrate the school from entering the building. For a three week period, the Central High grounds resembled the set of a science fiction film of the era – upright American soldiers with bayonet-tipped rifles protecting innocent children from an alien force in their midst. Finally, on September 25th, the Little Rock Nine, now with the support of a federalized Arkansas National Guard and the 101st Airborne Division – activated and sent to Little Rock by President Dwight D. Eisenhower – were escorted into Central High to begin a school year that they and everyone else in Little Rock would never forget.

The Little Rock crisis did not escape the attention of former Brooklyn Dodger Jackie Robinson. Just over nine years before, Robinson entered, almost overnight, into the lives of white America when he became the first African American to penetrate one of the most sacrosanct citadels of white supremacy – professional baseball. On April 15th, 1947, when Robinson jogged to first base on Opening Day at Ebbets Field, he did more than just break the color barrier in what was then America’s most popular sport. He destroyed it.

Largely forgotten in the retelling of the Jackie Robinson story is that of the 26,623 fans that attended Robinson’s first game, about 5,000 short of a sell-out, an estimated 14,000 were black. In one day, more black fans attended a Brooklyn Dodgers game than in the franchise’s entire existence. That year, the Dodgers set an attendance record at home, as their fans embraced their new hero. They also became the sport’s leading draw on the road. This was hardly a coincidence.

By the end of his first season, only the most hard-core segregationists failed to embrace Robinson’s remarkable combination of determination, courage, intelligence and athleticism. He was named Rookie of the Year, the first year the award was given out, and was feted with gifts in an end of the year ceremony at Ebbets Field. As Jules Tygiel wrote in Baseball’s Great Experiment, “For blacks, Robinson became a symbol of pride and dignity; to whites, he represented a type of black man far removed from the prevailing stereotypes, whom they could not help but respect.”

But then something happened along the way that changed the public’s perception of Robinson as a grateful black man just happy to have the opportunity to play baseball with whites – the real Jackie Robinson emerged. The Jackie Robinson that baseball fans and sportswriters thought they knew was not the man that Branch Rickey selected to break the color barrier. Robinson never accepted Jim Crow, whether in his occasional run-ins with white authorities while growing up in Pasadena and attending college at UCLA over the restrictions placed on blacks. Most famously, in 1944, Robinson was court-martialed at Fort Hood, Texas, when he refused to sit in the back of a military bus. He was later acquitted.

After his second year with the Dodgers, Robinson began fighting back, in accord with the terms that Rickey had established when he signed with the Dodgers in 1945. On the field, he challenged umpires, confronted opponents who played dirty against him and began to make public statements about the difficulties that blacks faced in baseball and in American society. Had he been white, Robinson would have been lauded as a gamer and a competitor.

Instead, the press began to turn on him, suggesting that he wasn’t grateful for the opportunities he had been “given.” Outside of Brooklyn, Robinson’s popularity steadily diminished. White America embraced black players like Willie Mays, Hank Aaron and Larry Doby, none of whom ever, at that point, publicly discussed race. By the time he retired in 1956, Robinson was perhaps the most unpopular man in baseball.

After almost six weeks of unprecedented drama at Central High, Robinson had seen enough. Having become the NAACP’s most prominent fund-raiser and public spokesman shortly after his retirement in 1956, Robinson worked with Arkansas NAACP officer Daisy Bates to arrange a phone call to the students. On October 17th – 59 years ago – Robinson spoke to seven of the Little Rock Nine and a few of their parents. A transcript of this conversation, which I recently read in his papers held at the Library of Congress, make clear Robinson’s stature among African Americans. One of the black students, Terrence Roberts, told Robinson, “I would like to say that what we are doing is only following the example you gave us, which is a very fine one, and we are trying to follow in your footsteps.

By the early 1960s, shortly after he was inducted into the Hall of Fame, Robinson turned his back on the game he revolutionized, claiming there was no place for him in baseball anymore. He had long become a fixture in the civil rights movement, raising money, participating in the March on Washington and supporting desegregation and voting rights efforts in the Deep South. His papers contain some of the many letters Robinson would write every living president of his post-baseball lifetime, imploring them in frank terms to take action on the various civil rights causes.

Robinson was, in many ways, a broken man when he died in 1972, remembered as the man who integrated white professional baseball, not as a civil rights activist who used baseball to pursue racial justice.

Today, however, Robinson is universally revered, admired as much for his courage as for the excitement he brought to the game. In 1997, Major League Baseball announced that Robinson’s number, 42, would be retired throughout the sport, an honor no other player has ever received.  Recent books and documentaries delve much deeper into Robinson’s civil rights activism the courageous civil rights advocate and praise him for his example and his willingness to use his celebrity to advance racial fairness.

African American Athletes who followed in Robinson’s wake, such as Muhammad Ali, experienced as similar demise in their popularity when they began to speak out on civil rights matters. Claiming conscientious objector status after he was drafted to serve in Vietnam, Ali was banished from boxing for almost four years and widely condemned by sportswriters and a public who loved the young, playful Cassius Clay. Yet, upon his death in 2016, Ali somehow was only remembered as a courageous, principled humanitarian whose position was borne out by a Supreme Court decision exonerating his position.

Twenty years from now, Colin Kaepernick may or may not be remembered for the protest he started when he refused to stand for the national anthem during an NFL pre-season game last year. But people will remember how Kaepernick’s protest slowly took on a life of its own, spreading to other sports and down the chain to colleges, high schools and youth programs. Obviously, Kaepernick’s message has resonated with minority athletes. A growing number of white athletes have supported their non-white teammates, having a better view of a black athlete’s life than many of those who have criticized Kaepernick’s position as selfish. This includes, not surprisingly, the current president, who believes that the First Amendment protects the rights of white Christian supremacists, unrepentant Confederate sympathizers and neo-Nazis, but not those who speak out against them in peaceful fashion.

Jackie Robinson was not just the first African American to integrate white professional baseball. He was the first athlete, regardless of race, to use his status and celebrity to engage the political world and speak out against racism in sports and society. For the black athlete, speaking out has been both a burden and a necessity – something they’re expected to do because they’re black, and yet something they need to do because they’re black. White America has no problem accepting the black athlete and hasn’t for some time, as long as they put the ball in the hoop, the end zone or in the stands. Extending that respect to black athletes as men is the next step.

Professor Ivers is currently working on a book, "Swingin' at Jim Crow: How Jazz Became a Civil Rights Movement".